Tony Jackson v. Kyle McNeil

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2023
• Docket: 20-35991
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TONY J. JACKSON, No. 20-35991

Plaintiff-Appellant, D.C. No. 3:19-cv-06245-RJB

v. MEMORANDUM* KYLE MCNEIL, Agent,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Argued and Submitted March 30, 2023 Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and PREGERSON,** District Judge.

Tony J. Jackson appeals the dismissal of his complaint seeking monetary

damages for an alleged Fifth Amendment procedural due process violation,

brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C § 1291.

We review de novo, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and

affirm.

Jackson claims that he was deprived of property without adequate pre-

deprivation notice, an argument he concedes presents a new Bivens context. See

Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022). Accordingly, we must determine

whether “there are ‘special factors’ indicating that the Judiciary is at least arguably

less equipped than Congress to ‘weigh the costs and benefits of allowing a

damages action to proceed.’” Id. (quoting Ziglar v. Abbasi, 582 U.S. 120, 136

(2017)); see also Hernández v. Mesa, 140 S. Ct. 735, 744 (2020).

Among such potential “special factors” is the existence of some “alternative

remedial structure.” Egbert v. Boule, 142 S. Ct. at 1804 (quoting Ziglar, 582 U.S.

at 137). In Egbert, for example, Department of Homeland Security regulations

allowed any person to file a grievance and required the Border Patrol to investigate

alleged violations of enforcement standards. 142 S.Ct. at 1806. This procedure,

the Court explained, offered an alternative remedy to a Bivens claim, thus

precluding the extension of Bivens into a new context. Id. Here, similarly, all

colorable claims of administrative misconduct must be reported to the Department

of Justice Inspector General, who may then investigate the allegations or refer

them for investigation. 5 U.S.C. § 413(b)(2), (d). Although this scheme appears to

2 provide more room for discretion than that at issue in Egbert, provides no

possibility of monetary relief, and may or may not be sufficient to deter

unconstitutional conduct, “the question whether a given remedy is adequate is a

legislative determination that must be left to Congress, not the federal courts.”

Egbert, 142 S. Ct. at 1807. “So long as Congress or the Executive has created a

remedial process that it finds sufficient to secure an adequate level of deterrence,

the courts cannot second-guess that calibration by superimposing a Bivens

remedy.” Egbert, 142 S. Ct. at 1807.

The government contends that additional special factors also argue against a

Bivens remedy. We need not reach these additional arguments, however, because

“if there is any reason to think that judicial intrusion into a given field might be

harmful or inappropriate,” then “a court cannot afford a plaintiff a Bivens remedy.”

Egbert, 142 S. Ct. at 1805 (internal quotation marks omitted); see also id. (Bivens

remedy unavailable if “there is any rational reason (even one) to think that

Congress is better suited to ‘weigh the costs and benefits of allowing a damages

action to proceed’” (quoting Ziglar, 582 U.S. at 136)).

AFFIRMED.